Friday, 6 March 2015

Nirbhaya
Rape, Dimapur Lynching and class contradiction in Indian society

Two
events of this week- controversy over documentary ‘India’s Daughter’ based on
Nirbhaya’s gang rape case, and the lynching of a rape accused in Nagaland by a
mob of more than thousand people, has brought the issue of relation between the
Indian state (here only I am concerned about the justice system) and a restless
society (the restlessness was most visible in the crushing defeat of the
Congress Party in 2014 Lok Sabha election) in public discourse. In Indian
context it has something to do with the entrenched
class bias in which we Indians have lived from time immemorial.

Societies
have existed from centuries. However there are certain functions that must be
performed if a society has to survive, and one of these functions is the
‘maintenance of law and order’. Earlier, before the arrival of modern state,
societies had built certain institutions to maintain order, and it was the
threat of feud, leading to extinction of the entire society that played the
most important role in maintaining order. The modern state having ‘monopoly
over the use of force’, whereas ‘non-state actors cannot take law into their
hand’, is recent phenomenon in the history of mankind. In modern state-centric
societies the state took up the role of punishing the accused, and providing
justice to the victim. The reason this switch over from society-centric to
state-centric justice system was, that many times the force used against the
accused was disproportionate to the crime committed, and sometimes innocents
were the victims of vigilantism.

This
gave birth to the modern justice system and court. There are certain principles
on which the modern justice system functions. Firstly, justice would be swift,
since ‘justice delayed is justice denied’. Secondly, the victim would get
justice and the culprit would be brought to book. Thirdly, an accused is
innocent till he/she is proven guilty. In modern state-centric societies
vigilantism is considered illegal and hallmark of a backward society.

First,
I would discuss the way the justice system vis-à-vis rape has functioned in
India. It won’t be totally incorrect to say that the justice system has not
lived up to the ‘expectation’, of victim’s families, as well as for a section
of people. This dissatisfaction from justice system has been growing in recent
times, whereas people think that the justice system has been lenient towards
the accused and cruel to the victim. The Nirbhaya case, which drew world-wide
attention and outrage can be used to understand this process. Three years have
passed since the heinous crime took place, but no one knows when the victim
would get justice. The case is with the highest court of the land, but from the
past one year nothing has happened. The rape accused are on the death row and
living under acute ‘mental torture’.

What
is the people’s perception about this particular case now? People suspect that
after a year or two the death penalty would be confirmed by the highest court.
But the confirmation will come only when a particular ‘time gap’ between the
award of death penalty by the lower court, and its execution schedule has taken
place. After that ‘someone’ would approach the court and the court would
pronounce another verdict which would commute the death sentence to
life-imprisonment. The logic would be that the culprit has been on death row
from long time, and has already lived a life worse than death. The ‘enlightened
people’ would cite European cases (very smartly not American case where death
penalty is not only legal but is very much active in practice) to defend
commutation of death penalty into life- imprisonment on the ground that the
state has no right to kill anyone. Thereafter the death sentence would be
commuted to life-imprisonment, and ultimately, sometimes in future, the accused
would be on the basis of having ‘good behaviour’ during the prison years. Just
see what happened to Surinder Koli, the perpetrator of Nithari rape cum murder
of more than a dozen children from lower class. After he was awarded death
penalty and had exhausted all options to save himself, suddenly Allahabad High
Court commuted his death penalty into life imprisonment.

The
second issue relates to the class bias in Indian society. Hierarchy is inbuilt
principle of our social order and that is very much manifested in rape cases.
Almost every victim of rape comes from the lower and lower middle classes. But
the state and the judicial system is controlled by the upper classes (through
Supreme Court) - judges, advocates, human right activists, academicians. This
class has been totally insensitive to the culture, value and needs of the lower
classes. For this upper class, publically championing the interests of the
lower class is just a means to legitimise their higher position in society. To
cite an example to make the issue clear. When it came to Teesta Setalvad, the
top advocates ensured that she was saved from the custodial interrogation. The
same law that has been invoked to ‘extract’ information from lower classes
became blasphemous in Teesta case. The upper class considers the lower class
not only totally different from them, but also less human who are born to be
humiliated, killed and raped. This leads to travesty of justice. The
Fundamental Right as enshrined in the Constitution (Article 14) about not only ‘equality
before the law, but equal protection of the laws within the territory of India’
has remained sham.

This
complex relation between a state controlled by the upper class and denial of
the justice to the lower class has brought restlessness among the people,
particularly those who have been the victim of this duel administration of law.
For the lower classes how the judicial system functions is becoming mysterious,
though we are supposed to be living in an era of right to information and
transparency. Once people know that it is almost impossible to get justice,
they are forced to take law into their hands. Only recently the women MPs,
while raising concerns about the documentary India’s Daughter, demanded that if
the judiciary is incapable in punishing the culprits, the culprits should be
handed over to them. The killing of a rape under- trial by the mob in Nagaland
is sad commentary on the way the upper class managed justice system and the
state has functioned. History shows that men have rebelled only when a
perception grows that the institutional arrangements that has been created to
provide justice to them has failed. The sooner the upper class controlled state
and judiciary take note of this fact the better it would be for the state as
well as society.

Wednesday, 4 March 2015

The AAP did not
come into existence as part of any design, but was product of the time. More
than a political party, the AAP was an ‘idea ‘whose main goal was to inject a
new political culture in Indian political system, particularly in electoral
democracy. The AAP was a platform for all those who wanted to work for a ‘clean’
politics. Those who believed in political morality, total revolution and
saintly politics started associating with the party. Means received priority
over the end (power). The main goal of the party was not to capture power, but
to clean the political system. Even while remaining part of the mainstream
electoral democracy; still doing things differently was the very basis of its existence.
The founders wanted the AAP to be an ‘experiment’ which would have
demonstration effects on other political parties. The India against Corruption
(IAC) members who founded the AAP just wanted to prove that they not only
preach (as was the case with the Anna movement and was criticized by the
mainstream political parties), but can also practice a ‘clean’ politics. The
strategy was to bring the ‘public’ into public policy and the method of AAP’s work
was built upon a basic principle- ‘medium is message’, that is ‘what we preach,
we practice’.

In 2013 when the
AAP became a political reality, two types of issues were agitating the minds of
people in Delhi- political corruption and price rise. The people of Delhi were
looking for some political alternative to the existing Congress regime, but the
BJP, the main opposition party to the Congress in Delhi was so weak that voters
had no faith in the ability of the BJP to dethrone the Congress. Kejriwal went
on to brinkmanship and many of his ‘unlawful’ acts were applauded by the people.
The result of Delhi assembly election was astonishing and defied all political logic.
There was worldwide acclaim of the AAP model of politics. A dozens of AAP’s
copycats sprouted in the country. However the AAP remained in the movement mode
even after it headed the government. Its forty-nine days tenure was known more
for the controversy it generated than the works it did. One day Kejriwal declared
that since his government was not able to get the Jan Lokpal Bill passed (that he
claimed was the very ‘soul’ of the party’s existence) he was resigning.

AAP probably got
carried away by the type of mandate it had received in Delhi. Kejriwal’s strategy
to position himself as the main rival of Modi sent him to Varanasi to contest
election against Modi. However looking Delhi election result as the microcosm
of national politics did not pay off. The absolute majority the BJP and total
rout of the Congress Party left no scope for any post-poll maneuverings in the
Lok Sabha. Now AAP strategy was to anyhow remain relevant in Delhi. Before
Delhi election the AAP was acting, whereas it was in control of its vision,
agenda and mode of action. However after 2013 Delhi assembly election, the AAP
was not acting but reacting to the emerging situation. As the end (to capture
power) acquired precedence over the means, it led to manifold complications for
the party. It even could not fight Maharashtra and Haryana assembly elections, since
with limited resources it was necessary for the party to ‘reclaim’ Delhi. Of
course the party has got unprecedented mandate in Delhi, but it has also
fielded 23 candidates with criminal background and an equal number of crorepatis.
The idealism with which it had started is the thing of the past. Today, like
other political parties, the winability of candidate has acquired priority, and
the sole aim of the party is to capture power. A party formed to inject transparency
in political system today remains highly non-transparent in its working. It
criticized the high command culture of other political parties, but today the
party revolves around whims and fancies of one person. Just to come to power it
has promised all sorts of things to different segments of the society. Aam
aadmi is just a voter and not a participant in the way the party is conducting
itself. The classical Marxist doctrine that people are not capable of deciding
about their destiny and must be guided by the enlightened agents has become the
hallmark of the AAP. One more party has been added into the Indian political
system. The party of ‘aam aadmi’ is dead.

Tuesday, 3 March 2015

The Article 25
of the Constitution of India guarantees the ‘freedom of conscience and free profession, practice and
propagation of religion’, ‘subject to public order, morality and health and all
persons are equally entitled to freedom of conscience and the right freely to
profess, practice and propagate religion’. While freedom of conscience and free
profession and practice’ of one’s religion has remained non-controversial; it
is the ‘freedom to propagate’ one’s religion, that has been a subject of
controversy, because the line separating conversion through conscience and
conversion through ‘force, allurement or fraud’ gets easily blurred. The
question is why the issue of conversion has suddenly become tricky whereas not only
domestic but even a foreign dignitary (the US President) was forced to speak
out about it.

I try to understand the complexities inherent in this
phenomena and why it won’t be easy to resolve it.

The conversion
from Hindus/ tribes/ scheduled castes (while Hindu groups say that these groups
are Hindus; others say that tribes and scheduled castes cannot be categorised
as Hindus) to non-Hindus is going on, as Christianity and Islam allows people
from other faith to become part of their religion. However in post-Independence
India there is difference between conversion to Islam and Christianity. While conversion
to Islam has been local phenomena whereas certain low caste Hindus convert to
Islam due to ‘bad’ treatment, marriage or just due to sheer belief; the Christianity
has a well-organised institutional structure to convert people into their fold.
In the process the economic aid, service to humanity and conversion to
Christianity get mixed up.

The Hinduism has
a different story altogether, since one can become Hindu only by birth. Though
‘the Hindu method of absorption’, whereas indigenous and tribal groups have
become part of the Hindu fold, has been going on from centuries; it is not
organized one and the process is so slow that
it takes three to four generation to be accepted into the Hindu fold.

What is the
implications of this dichotomy between a legal (constitutional) order that
allows people to propagate their religion, and a social order, whereas while the
Hindus cannot convert others to their religion, but Christian and Muslims can
do the same?

While there are
many reasons why the Hindu groups find themselves in disadvantageous position
due to this dichotomous relation between the legal and social order; one of the
immediate reasons seems to be the place of population in democracy. The
minority community still does not support the BJP which is the preferred party
of a section of fundamentalist Hindus. These Hindu groups believe that the
rising population of Christian and Muslim will be detrimental to their idea of
India. So in order to increase their number, now certain Hindu organizations have
started advocating that one can also become Hindu, like one becomes Christian
or Muslim, through conversion. Though this is against the long tradition of
Hinduism, it has found takers among the Hindus religious heads and other
organizations. The dilemma has been resolved by stating that Hindu groups are not bringing anyone to
Hindu fold, but just facilitating these people (Muslims and Christians) once
again revert back to Hinduism. Their claim is that these people were Hindu and
converted to other religion either due to fear (Islam) or favour
(Christianity). The process of bringing these people into Hindu fold has become
easier due to detachment of occupation from caste and floating urban
population. Just imagine that if someone takes up a Hindu name after conversion
he will get married among Hindus somewhere and no one is going to question him.
The economic benefits that the Hindu SCs gets from the protective
discrimination of the state policy has acted like an incentive to non-Hindus to
adopt Hindu religion.

And here lies
the predicament of the Christian missionaries and secular parties. The Muslims
are not much affected by this process since they don’t have an organized
institution to convert people (even if it exist it is not as strong as the
Christianity) into their fold, and most of the conversion to Islam has taken
place in distant past so Islamic ideology has become part of their conscience. Thus
there is little chance for Muslims to convert to Hinduism. However the
conversion to Christianity has been very recent one and there is very high
level of probability that these groups would revert back to the Hindu fold. These
newly converted Christians still have not been able to totally detach
themselves from the previous faith.

The irony is
that it is the Hindus groups that demand enactment of an anti-conversion law,
and it is the Christians, who are at the receiving end, are vehemently opposed
to any anti-conversion law. The reason is that the Christian organisations know
that any anti-conversion law would stop the conversion of Hindus and other
indigenous groups to Christianity. But the irony is that they don’t want the
Hindu groups to indulge in the process of ‘re-conversion’ or ‘Ghar Wapsi.
Earlier the dichotomy of legal and social order worked in the favour of
Christians, but as the dichotomy is getting erased the Christians find
themselves in disadvantageous position.